McCarthy v. City of Minneapolis
| Citation | 281 N.W. 759,203 Minn. 427 |
| Decision Date | 14 October 1938 |
| Docket Number | 31,793 |
| Parties | LOUIS A. McCARTHY AND ANOTHER v. CITY OF MINNEAPOLIS AND OTHERS |
| Court | Supreme Court of Minnesota (US) |
Action in the district court for Hennepin county to recover camages for depreciation in value of plaintiffs' residence property by reason of the construction of a street railway bridge. From an order, Mathias Baldwin, Judge, sustaining without leave to plead over, general demurrers to plaintiff's complaint, plaintiffs appealed. Affirmed.
Eminent domain -- damaging private property -- right to damages.
1. Under Minn. Const. art. 1, § 13, where private property is not taken but is damages for public use without compensation first paid or secured, the owner has his cause of action in tort.
Eminent domain -- damaging private property -- right to damages.
2. The incidence of that constitutional provision is not on the substantive law of damages. Its purpose is to allow recovery in the same circumstances and manner against corporations having power of eminent domain as against persons not enjoying that power.
Municipal corporation -- public improvement -- right to damages.
3. Generally, the owner of private property has no action against the city for the erection of a public improvement unless as to him it amounts of a private nuisance.
Easement -- light, air, and view.
4-5. Plaintiffs' easements for light and air and for view were not invaded by the erection of a viaduct on a street not adjacent to their property.
Municipal corporation -- erection of street railway bridge -- right to damages.
6. Plaintiffs cannot recover for diminution in value of their property caused by the noise and vibration of streetcars operating over the bridge. Even though the streetcar tracks had been on the street in front of their property they would not have been an additional servitude.
Edward J. Callahan and Edward J. Kotrich, for appellants.
R. S Wiggin, City Attorney, and Palmer B. Rasmusson, Assistant City Attorney, for respondent City of Minneapolis.
Action to charge the city of Minneapolis with damages plaintiffs claim to have suffered from the construction of the street railway bridge described in Bruer v. City of Minneapolis, 201 Minn. 40, 275 N.W. 368, wherein we held that the Minneapolis Street Railway was not liable, as a joint tortfeasor, to abutting property owners. The instant case comes here on appeal by plaintiffs from an order sustaining, without leave to plead over, general demurrers to the complaint.
There is no allegation of negligence. The case for plaintiffs reduces itself to a claim that the construction and maintenance of the viaduct created as to them a private nuisance. This decision in favor of the city makes unnecessary further reference to defendants Tetzlaff, purchasers of the involved real estate from plaintiffs pending the construction of the bridge, and after much, if not all, of plaintiffs' damage had accrued.
The bridge is a modern affair of reinforced concrete. It carries the streetcar track southerly on Bryant avenue, over the valley of Minnehaha creek, which passes under it at this point about at right angles. The creek is flanked on the south by West Minnehaha Boulevard, on which, west of the bridge, plaintiffs' residence property faces north. It does not about on Bryant avenue but is separated therefrom by one 60-foot lot. The means of ingress to and egress from plaintiffs' property remain as before. The boulevard passes unimpeded under the bridge. Inasmuch as on this appeal the well pleaded allegations of the complaint are to be considered true, we assume that the value of plaintiffs' property was much diminished by the construction of the bridge.
We proceed then to consider whether any right of plaintiffs was invaded. Our answer to that question, for reasons hereinafter appearing, is a negative.
1. The bridge was erected by the city in proper exercise of its governmental power over streets and street traffic. But if otherwise they have a case, plaintiffs are entitled to invoke Minn. Const. art. 1, § 13, as amended in 1896, declaring that: "Private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured." Where property is not taken for public use, but is damaged thereby without compensation therefor first paid or secured, the owner has his cause of action in tort against the wrongdoer. Stuhl v. G.N. Ry. Co. 136 Minn. 158, 161 N.W. 501, L.R.A. 1917D, 317. See Annotation 20 A.L.R. 516.
2. By the constitutional amendment covering damage without taking, no now cause of action unknown to the common law was created. The amendment but removed a bar imposed by some legislative and some constitutional law to one species of action in tort. Its incidence is not on "the substantive law of damages." Its only purpose is to allow recovery in the same circumstances and manner against corporations having power of eminent domain as against those not enjoying that power (Stuhl v. G.N. Ry. Co. supra) -- "to give a remedy merely for legal wrongs, and not for such injuries as were damnum absque injuria." Smith v. St. P.M. & M. Ry. Co. 39 Wash. 355, 366, 81 P. 840, 844, 70 L.R.A. 1018, 1024, 109 A.S.R. 889.
3. The fact alone that the city was within its legal right in erecting the bridge may not absolve it from liability. But it is not liable as for tort unless what it has done amounts to a "private nuisance as to individuals who are specially injured thereby." Romer v. St. Paul City Ry. Co. 75 Minn. 211, 218, 77 N.W. 825, 826, 74 A.S.R. 455. Certainly there was no private nuisance as to plaintiffs if none of their private rights were invaded.
The bridge effected a separation of street traffic. Pro tanto it was a change of grade. Legally as well as factually, the bridge is a part of the street. Willis v. Winona City, 59 Minn. 27, 60 N.W. 814, 26 L.R.A. 142. From that change alone plaintiffs suffered no damage. None but abutting owners recover damages for a change of grade without more.
4. Neither was plaintiffs' easement for light and air invaded. Its physical reach is confined to the street in front of their property, and also, we assume, to the alley in the rear. It has no operation laterally. For example, a lofty building on the lot between plaintiffs' dwelling and Bryant avenue would cut off much more of light and air than does the bridge, but it would be no invasion of plaintiffs'...
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